Many enterprises pay social security for their employees based on the minimum base in order to save labor costs. Is this really okay?
01、The tax bureau issues a notice requiring enterprises to pay social security according to the total wage bill
A certain company previously received a "Notice on Social Insurance Premium Matters" issued by the tax bureau:
Cause: The employer has not handled social insurance registration in accordance with the regulations, and has not withheld and paid social insurance premiums for all employees on time at the ratio of the total wage bill of the unit's employees.
Informed Matters: Please, within 30 days from the date of employment, complete the social insurance registration and pay social insurance premiums in accordance with the law for the employees of your unit from the date of receiving this notice.
02、Can the unit pay social security according to the minimum wage?
According to the provisions of the "Notice on Standardizing Issues Related to the Social Insurance Premium Base":
The social insurance premium base of employees is generally determined according to the employee's average monthly salary in the previous year (or the individual's salary last month). The higher the employee's salary, the higher the social insurance premium base will be.
At the same time, this document also sets an upper limit and a lower limit for the premium base. Specifically:
Lower limit: If the premium base is lower than the minimum premium base stipulated in various places (60% of the local average social salary), social security shall be paid according to the minimum premium base;
Upper limit: If the premium base is higher than the maximum premium base stipulated in various places (300% of the local average social salary), social security shall be paid according to the maximum premium base.
Note: The minimum wage standard is only the minimum limit for social security premiums stipulated by law, not the premium base. It is illegal to pay social security according to this standard.
03、If enterprises all pay social security according to the minimum base, do they need to make up the payments later?
Reply from the Fujian Provincial Tax Bureau:
Message content: Can the social security of enterprise employees be paid according to the minimum payment base? According to the regulations found online, the payment base should be the average salary of the previous year. However, most enterprises pay according to the minimum payment base. Do they need to make up the payments later?
Reply content: According to the "Social Insurance Law of the People's Republic of China" (Presidential Decree No. 35 of the People's Republic of China), it is stipulated: "Article 12 Employers shall pay basic old-age insurance premiums at the ratio of the total wage bill of their employees as stipulated by the state, and record them in the basic old-age insurance pooling fund.
Employees shall pay basic old-age insurance premiums at the ratio of their own salaries as stipulated by the state, and record them in their individual accounts.
Self-employed individuals without employees, part-time employees who have not participated in basic old-age insurance in employers, and other flexible employees who participate in basic old-age insurance shall pay basic old-age insurance premiums according to state regulations, and record them separately in the basic old-age insurance pooling fund and individual accounts.
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Article 23 Employees shall participate in basic medical insurance for employees, and the employers and employees shall jointly pay basic medical insurance premiums according to state regulations.
Self-employed individuals without employees, part-time employees who have not participated in basic medical insurance for employees in employers, and other flexible employees may participate in basic medical insurance for employees, and shall pay basic medical insurance premiums by themselves according to state regulations.
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Article 35 Employers shall pay work-related injury insurance premiums according to the total wage bill of their employees and the premium rate determined by the social insurance agency.
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Article 44 Employees shall participate in unemployment insurance, and the employers and employees shall jointly pay unemployment insurance premiums according to state regulations.
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Article 53 Employees shall participate in maternity insurance, and the employers shall pay maternity insurance premiums according to state regulations, and employees shall not pay maternity insurance premiums.
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Article 60 Employers shall declare themselves, pay social insurance premiums on time and in full, and shall not delay payment or be exempted from payment except for statutory reasons such as force majeure. The social insurance premiums that employees should pay shall be withheld and paid by the employers, and the employers shall inform the employees of the details of the social insurance premiums paid on a monthly basis.
Self-employed individuals without employees, part-time employees who have not participated in social insurance in employers, and other flexible employees may directly pay social insurance premiums to the social insurance premium collection agency.
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Therefore, employers shall pay social security at the ratio of the total wage bill of their employees as stipulated by the state. Employers shall declare themselves, pay social insurance premiums on time and in full, and may specifically refer to the provisions of the above documents.
04、Failing to pay social security as required has serious consequences! But these 10 types of people do not need to have social security paid for them!
1.Rehired retired employees
Article 44 of the "Labor Contract Law of the People's Republic of China" stipulates: Under any of the following circumstances, the labor contract shall be terminated:
(2) The worker begins to enjoy basic old-age insurance benefits in accordance with the law.
The contract signed between the company and the retired employee does not belong to a labor contract, but a labor service contract. Labor contract disputes fall within the scope of adjustment of the Labor Law, the Labor Contract Law, and the Trade Union Law, and require the pre-arbitration procedure;
A labor service contract is one type of civil contract and is subject to the adjustment of civil law, the Contract Law, and economic law. Therefore, disputes arising from a labor service contract can be heard by the people's court or resolved through negotiation between the two parties.
2.Interns
Many schools will ask students to find internship units on their own in the last half year before graduation. Some enterprises often recruit interns who have not graduated due to the nature of their work and other reasons. Then, when hiring interns, is it necessary to pay social insurance for them?
The Labor Law stipulates that only employers and workers of a certain age who meet the requirements of a labor relationship can sign a "Labor Contract". However, whether it is a labor relationship or a labor service relationship is not determined by the name and content of the contract, but by the nature of employment.
As long as the worker is over 16 years old and has not reached the retirement age, and there is no "affiliation relationship" with a third party, the two parties must sign a "Labor Contract". Even if it is not signed, the worker is still protected by the Labor Law.
Although interns are over 16 years old, they have an "affiliation relationship" with the third-party school. The employer can only sign a "Labor Service Contract" or an internship agreement with them.
Therefore, for interns hired by an enterprise, since they have a labor service contract (or internship agreement), there is no need to pay social insurance for them.
3.Personnel dispatched by contractors
In general contracting and subcontracting of engineering projects, the general contractor often sends several management personnel, such as technical directors, project directors, project managers, construction workers, and other on-site management personnel for the convenience of project supervision. The salaries of the dispatched personnel are generally borne by the subcontractor. At the same time, the subcontractor will also sign a "Labor Service Contract" with the dispatched personnel.
Such dispatched personnel can only sign a "Labor Service Contract" with the subcontractor. The personnel dispatched by the general contractor have already signed a "Labor Contract" with the general contracting unit and have an "affiliation relationship" with the general contractor. The subcontractor does not need to pay social insurance for them.
4.Employees on leave without pay and retaining their jobs
The so-called leave without pay and retaining their jobs means that redundant fixed employees of an enterprise retain their identities and leave the unit.
The period of leave without pay and retaining their jobs generally does not exceed 2 years.
If an employee has signed a "Leave Without Pay and Retaining Job Agreement" with a third-party company, then the new employer can only sign a "Labor Service Contract" when recruiting this person, and there is no need to pay social insurance for him/her.
5.Co-insurance personnel
Co-insurance personnel refer to laid-off workers who have signed a tripartite agreement to retain their social security relationship with their original units and reemployment service centers. When a new unit recruits co-insurance personnel, it can only sign a "Labor Service Contract", and there is no need to pay social insurance for them.
6.Part-time employees in non-independent labor
Non-independent labor part-time work refers to engaging in a second occupation in spare time without leaving the main job, and providing physical or mental labor services for a third party.
Part-time employees have their own jobs. The signing of labor contracts and the payment of social insurance are handled by their main work units, which have nothing to do with the part-time companies, and there is no need to pay social insurance.
7.Employed dispatched personnel
The labor dispatch unit shall sign a labor dispatch agreement with the employing unit. If the agreement stipulates that the attendance and salary payment of dispatched personnel are
the same as those of the employer's own employees, and the employer pays the corresponding expenses to the dispatched employees, and the five social insurances and one housing fund are paid by the labor dispatch party, it shall be recognized as a wage and salary item both in individual income tax and corporate income tax.
Since the dispatched personnel have had their social insurance paid by the labor dispatch company, the enterprise does not need to pay social insurance for these personnel.
8.Outsourcing enterprise business to individual industrial and commercial households
Group the employees on the production line into individual industrial and commercial households. The employees' salaries are converted into the business income of the individual industrial and commercial households. Self-employed individuals without employees can participate in basic old-age insurance and pay basic old-age insurance premiums by themselves. The enterprise does not need to pay social insurance for them.
9. Part-time employment
Part-time employment is paid by the hour. For a part-time worker in the same employer, the average daily working hours do not exceed 4 hours, and the cumulative working hours per week do not exceed 24 hours.
Part-time employees can participate in basic old-age insurance and basic medical insurance, and pay basic old-age insurance premiums and basic medical insurance premiums by themselves.
10.Flexible employees
Flexible employees refer to employees who are employed in flexible forms such as part-time, temporary, and flexible work. There are mainly three types: self-employed workers, family helpers, and other flexible employees such as seasonal workers, labor contract workers, dispatched workers, and family hourly workers.
Flexible employees can pay basic old-age insurance premiums and basic medical insurance premiums by themselves.